The recent CEL publication Open, Online, and Equitable Education (Turner et al. 2024) offers an optimistic view of the present and future of its titular subject matter. Although that tone carries throughout the book, I want to consider its role in the opening and closing chapters from Baker, Hornsby, and Turner. Their positivity is not wholly naïve; the introduction offers brief consideration of unresolved “questions about digital equity and access to higher education” (p. 2), and their conclusion acknowledges success is contingent upon having “support resources.” After sharing case studies from around the world, however, the team concludes “the authors in this volume have demonstrated through lived experience and research that achieving the goals of online, open, and equitable higher education are entirely within our reach” (p. 273) if educational institutions and their leadership find the will to maintain the successes of COVID-19-era instruction, and individual actors fend off the “compassion and change fatigue” (p. 274) of our post-pandemic moment.  

Unfortunately, I don’t share their optimism. What’s more, the authors came so close to naming the problem I see when addressing “access.” They correctly identified digital access as the issue but do not ask the question I believe most germane—and most threatening—to their conclusions. It might be more accurate to say they consider the spectrum of digital accessibility rather than access as such, but recent legal developments force us to consider things in more binary terms. That is, the more salient access question is whether there will be anything to access at all very soon. 

To address our new question, we must first consider a deceptively simple point: education depends on instructors’ ability to share written information with students. Until very recently, written information was only shared physically. In the United States, the right for educators and libraries to do so is firmly established by Title 17 of the United States Code and extensive judicial precedent (Wolfson 2024). With the advent of the web, however, libraries could now provide access to digitized and borne digital materials. Over the last few decades, a practice called controlled digital lending (CDL) emerged as the standard for leasing digitized items. Grounded in the fair use doctrine and the common law principle of exhaustion (Hansen and Courtney 2018), CDL uses a three-point checklist to enable libraries to do virtually what we have done physically for millennia: provide access to information. To practice CDL, a library must: (1) own a physical copy of any item it lends, (2) maintain a one-to-one “owned to loaned” ratio, and (3) take steps to ensure digital files cannot be reproduced and redistributed by borrowers (SPARC 2024). 

In 2020, with education happening almost exclusively online, CDL’s importance for—and visibility within—libraries rose sharply. One of the highest profile practitioners then was the Internet Archive, who opened the National Emergency Library that March. Breaking with convention, the Internet Archive removed “owned to loaned” restrictions, opening its entire collection to borrowers and allowing multiple users to rent the same item simultaneously (including items potentially ineligible for CDL for other reasons). Unsurprisingly, book publishers blanched at this, and a group led by Hachette filed a lawsuit against the Internet Archive in June 2020. After three years of litigation, the court rejected the Internet Archive’s fair use argument. Finally, in December 2024, the Internet Archive declined further appeals after an appellate court upheld that decision. Crucially, the court’s analysis considered the fair use argument for CDL as a whole, not just for the Internet Archive, leaving the future of the practice in serious doubt. Beyond libraries and the Internet Archive, this case could endanger other prominent repositories and projects including HathiTrust and Google Books. Baker, Hornsby, and Turner tell us the “collective call to action for higher education is to not lose the momentum we have gained” (p. 274), but that momentum is now carrying us backwards. 

None of this should be taken as criticism of Baker, Hornsby, and Turner, per se. First, the case was not fully decided when the manuscript was submitted. While the writing was arguably on the wall before the initial ruling in September 2023, most of the authors are located in other countries, and those in the US may have decided to continue taking the optimist’s stance and hope that CDL—if not the Internet Archive—would be preserved. Second, CDL is not a widely known concept. If you aren’t on the lender side of the issue, the theoretical mechanism enabling your borrowing might never occur to you. Moreover, glance through the professional literature in librarianship and you will see much handwringing about our inability to effectively explain what we do to the outside world. We work so hard to make using the library as seamless an experience as possible that we only really become visible when things break, by which point unpacking pertinent jurisprudence would only drain what’s left of the user’s dwindling patience. If I have true criticism to offer, it’s aimed at libraries and our inability to balance meeting our users’ needs with making perceptible the work and skill that goes into doing so.  

This blog post originated with the prompt “what one thing from the library’s perspective would you want someone reading this book to know?” With all that as preamble, then, my answer is this: all of the great, important projects this book champions do not exist in a vacuum. While the ideas behind these efforts are indispensable, the material precedes the ideal here; there are laws governing, there is infrastructure facilitating, and there is capital circulating. Furthermore, those realities do not cheapen these endeavors. On the contrary, making online education more open and equitable (even just temporarily) despite the crassness of those systems demonstrates precisely how extraordinary these accomplishments really are. Problems only arise when we don’t acknowledge the facts. We can say information ought to be free, but we have to make sure not to obscure the fact that it isn’t yet. 

All available evidence suggests these advancements will be rolled back (and then some). It would be a disservice to the talented educators celebrated here to be pollyannaish and pretend otherwise. These gains will be lost because powerful interests decided Baker, Hornsby, and Turner were fundamentally correct: online education was becoming too open and equitable. Those of us who believe in the open culture movements lost this battle, but we will carry on our campaign with clear eyes. Our task now is to survey the new terrain and begin re-envisioning the push for lasting open and equitable education.  

References 

Hansen, David R., and Kyle K. Courtney. 2018. “A White Paper on Controlled Digital Lending of Library Books.” https://dash.harvard.edu/handle/1/42664235.  

Scholarly Publishing and Academic Resources Coalition (SPARC). 2025. “Controlled Digital Lending.” SPARC. Accessed January 29. https://sparcopen.org/our-work/controlled-digital-lending/.   

Turner, Nancy K., Nick Baker, David J. Hornsby, Aline Germain-Rutherford, David Graham, and Brad Wuetherick, eds. 2024. Online, Open, and Equitable Education: Lessons from Teaching and Learning during the Global Pandemic. Center for Engaged Learning Open Access Book Series. Elon University Center for Engaged Learning. https://doi.org/10.36284/celelon.oa7.  

Wolfson, Stephen. 2024. “Hachette Book Group v. Internet Archive and the Future of Controlled Digital Lending.” Penn Libraries. February 21. https://www.library.upenn.edu/news/hachette-v-internet-archive. 

Additional Reading

Aissaoui, Najeh. 2022. “The Digital Divide: A Literature Review and Some Directions for Future Research in Light of COVID-19.” Global Knowledge, Memory and Communication 71 (8/9): 686–708. https://doi.org/10.1108/GKMC-06-2020-0075.  

About the Author 

Jesse Ackman serves as library liaison to Elon’s life and health sciences programs, including, but not limited to the School of Health Sciences (Doctor of Physical Therapy and Physician Assistant Studies), Public Health Studies, Exercise Science, Biology, Chemistry, Environmental Studies, and Neuroscience. He is a member of the Department of Library Research and Scholarly Services where his work focuses on Open Educational Resources (OER), Open Access Publishing (OA), and data visualization and management. 

How to Cite This Post  

Ackman, Jesse. 2025. “Controlled Digital Lending is Dead. What’s Next for Open and Equitable Online Education?” Center for Engaged Learning (Blog), Elon University. April 29, 2025. https://www.centerforengagedlearning.org/controlled-digital-lending-is-dead-whats-next-for-open-and-equitable-online-education.

Charco illustrations by Karthik Srinivas.